RESOLVING THE POST-BEGAY MAELSTROM: STATUTORY RAPE AS A VIOLENT FELONY UNDER THE ARMED CAREER CRIMINAL ACT

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1 RESOLVING THE POST-BEGAY MAELSTROM: STATUTORY RAPE AS A VIOLENT FELONY UNDER THE ARMED CAREER CRIMINAL ACT SARENA M. HOLDER * I. INTRODUCTION II. DEFINING STATUTORY RAPE: A CROSS-JURISDICTIONAL SURVEY III. THE ARMED CAREER CRIMINAL ACT AND THE ADVENT OF THE VIOLENT FELONY A. Legislative History B. The Crime of Violence and the United States Sentencing Guidelines C. Categorical Approach IV. RECONCILING BEGAY V. UNITED STATES AND CHAMBERS V. UNITED STATES A. Deconstructing Begay v. United States B. Where Does Chambers v. United States Fit? C. Resolving the Uncertainty V. STATUTORY RAPE: SIMILAR IN KIND TO THE ENUMERATED OFFENSES A. Addressing the Purposefully Requirement B. Rape Statutes as a Benchmark: Defining Force and Violence C. Should Consent-in-Fact Be a Factor? VI. SIMILAR IN DEGREE OF RISK POSED TO THE ENUMERATED OFFENSES: SERIOUS RISK OF PHYSICAL HARM A. What is the Harm? Physical Injury from the Sex Act Sexually Transmitted Disease, Pregnancy, and Poverty B. Risk Versus Actual Harm VII. CONCLUSION * J.D. Candidate, May 2012, Cleveland-Marshall College of Law. I would like to thank my family for their support during this process, and to express my deepest gratitude to my Note advisor, Professor Jonathan Witmer-Rich, for his thoughtful critiques and comments. 507

2 508 CLEVELAND STATE LAW REVIEW [Vol. 60:507 I. INTRODUCTION The Armed Career Criminal Act ( ACCA ), 1 enacted in 1984, mandates a minimum fifteen-year sentence 2 for defendants who unlawfully possess a firearm 3 and who also have three prior convictions for violent felonies and/or serious drug offenses. 4 Since its inception, the ACCA has presented a weighty problem: what constitutes a violent felony? 5 A seemingly self-explanatory phrase, the language in the statute has nevertheless proven woefully inadequate in determining what crimes qualify for the enhanced sentencing required under the ACCA. 6 The United States Supreme Court has made an effort to allay the confusion, most recently in its decision in Begay v. United States, 7 requiring that violent felonies be purposefully violent or aggressive. 8 This definition, however, along with the Court s 1 Armed Career Criminal Act (ACCA), 18 U.S.C. 924(e) (2006). 2 Although the prudence of mandatory minimum sentences are beyond the scope of this Note, there has been significant debate regarding the imposition of enhanced sentencing and mandatory minimums. Compare Mandatory Minimum Sentencing Laws - The Issues: Hearing Before the Subcomm. on Crime, Terrorism, and Homeland Security of the H. Comm. on the Judiciary, 110th Cong. (2007) (contending that eliminating mandatory minimum sentencing guidelines would result in sentences that are too lenient given the offense), and U.S. SENTENCING COMM N, SPECIAL REPORT TO THE CONGRESS: MANDATORY MINIMUM PENALTIES IN THE FEDERAL CRIMINAL JUSTICE SYSTEM 13 (1991), available at /Mandatory_Minimum_Penalties/199108_RtC_Mandatory_Minimum.htm (arguing that mandatory minimum sentences prevent crime because those who are incapacitated as a result of such sentences are unable to commit additional crimes while imprisoned, and that mandatory minimum sentences deter convicted and potential criminals from committing crime and that they ensure fairness in sentencing), with BARBARA S. VINCENT & PAUL J. HOFER, FED. JUDICIAL CTR., THE CONSEQUENCES OF MANDATORY MINIMUM PRISON TERMS: A SUMMARY OF RECENT FINDINGS 14 (1994), available at ( Mandatory minimums have had no observable effect on crime. ) U.S.C. 924(g)(4) (2006) U.S.C. 924(e)(1) (2006) U.S.C. 924(e)(2)(B) (2006). 6 See, e.g., United States v. Shannon, 110 F.3d 382, 387 (7th Cir. 1997) (upholding conviction for participating in sexual intercourse with thirteen-year-old female complainant as a crime of violence); United States v. Dickerson, 77 F.3d 774, 777 (4th Cir. 1996) (upholding conviction for felony attempted escape from custody as a crime of violence since it involves conduct that presents serious risk of physical injury to others); United States v. Hascall, 76 F.3d 902, 906 (8th Cir. 1996) (holding that burglaries of commercial properties qualify as predicate crimes of violence for sentence-enhancement purposes); United States v. Rutherford, 54 F.3d 370, 377 (7th Cir. 1995) (upholding conviction for vehicular assault while intoxicated as crime of violence); United States v. Weekley, 24 F.3d 1125, 1127 (9th Cir. 1994) (holding that trial court did not commit reversible error in refusing to count attempted burglary as predicate crime of violence); United States v. Poff, 926 F.2d 588, 593 (7th Cir. 1991) (holding that writing threatening letters to public officials is a crime of violence). 7 Begay v. United States, 553 U.S. 137 (2008). 8 Id. at 144.

3 2012] RESOLVING THE POST-BEGAY MAELSTROM 509 holding in Chambers v. United States 9 seemingly relying on the pre-begay test of whether the predicate offense poses a serious potential risk of physical injury to another 10 has further muddied the waters regarding strict liability crimes that lack the requisite mens rea for violence under Begay. 11 The crime colloquially referred to as statutory rape is one such crime, and the circuits are split on whether to regard it as a crime of violence. 12 This Note questions the reasoning of circuit courts that have disallowed statutory rape as a violent felony post-begay, a stance that has generally been supported by the argument that, as a strict liability crime 13 that is often consensual, a statutory rape cannot be uniformly typified as purposeful or aggressive. 14 Rather than construing the acquiescence of a minor to intercourse as consent that negates the aggression required under Begay, the focus of the courts should instead be on the reason that the legislatures in all states have rendered sex with a minor a strict liability crime: a child lacks the ability to give any legally-cognizable consent. 15 This well-settled rule of law should create a presumption that, if an adult knowingly engages in sexual intercourse with a minor below the age of consent, such intercourse is inevitably the result of a purposeful aggression against the child on the part of the offender. Such a presumption is implied by the nature of the crime itself and by the manner in which the states have drafted their statutory rape legislation. Adopting this rule would remedy the post-begay confusion with regards to strict liability sex crimes that center on the inability of the victims to form consent. 9 Chambers v. United States, 555 U.S. 122 (2009). 10 Id. at See Begay, 553 U.S. at See Michael M. O Hear, Seventh Circuit Decides That Reckless Injury and Statutory Rape Are Not Crimes of Violence, MARQ. UNIV. L. SCH. FACULTY BLOG (Jan. 27, 2010), 13 Statutory rape laws historically prohibited sexual conduct between persons above and below a codified age of consent. Today, they are generally strict liability crimes, although some courts have allowed a mistake of age defense. See, e.g., People v. Hernandez, 393 P.2d 673, 677 (Cal. 1964) (allowing mistake of age defense to statutory rape charge where defendant held reasonable belief that female complainant was above the age of consent). See also Catherine L. Carpenter, On Statutory Rape, Strict Liability, and the Public Welfare Offense Model, 53 AM. U. L. REV. 313 (2003); Jarrod Forster Reich, Note, The Need for a Mistake of Age Defense in Child Rape Prosecutions, 57 VAND. L. REV. 693 (2004). 14 See United States v. McDonald, 592 F.3d 808 (7th Cir. 2010); see also United States v. Thornton, 554 F.3d 443, 444 (4th Cir. 2009) (holding that a Virginia statute making it a felony to have non-forcible sexual contact with a child between the ages of thirteen and fifteen was not a violent felony post-begay); United States v. Christensen, 559 F.3d 1092, 1095 (9th Cir. 2009) (noting that because statutory rape may involve consensual sexual intercourse... it does not necessarily involve either violent or aggressive conduct ). 15 See People v. Gonzales, 561 N.Y.S.2d 358, 361 (N.Y. Sup. Ct. 1990) ( It has long been recognized that the state has the authority to regulate the sexual conduct of its minors by setting age limits to establish whether the individual is sufficiently mature to make intelligent and informed decisions and to consent to certain activities. ).

4 510 CLEVELAND STATE LAW REVIEW [Vol. 60:507 In furtherance of this view, Part II of this Note seeks to define statutory rape in light of how the elements differ by jurisdiction. Part III explores the legislative history of the ACCA s enhanced sentencing provisions and its definition of violent felonies for the purpose of enhanced sentencing, and compares this language to that of other federal sentencing guidelines. Part IV describes the United States Supreme Court rulings in Begay v. United States and Chambers v. United States and how these cases have contributed to the ongoing evolution of the definition of a violent felony or a crime of violence. Part V examines statutory rape as a predicate violent felony and proposes a rule that would, in accordance with Begay, presume aggression in the absence of consent. Part VI considers the serious risks of physical harm to minors that may result from sexual activity with an adult offender, and why these risks should render statutory rape a predicate violent felony under the ACCA. Part VII concludes. II. DEFINING STATUTORY RAPE: A CROSS-JURISDICTIONAL SURVEY Modern statutory rape legislation has evolved from English common law property doctrines intended to preserve the interest of fathers in the chastity of their daughters. 16 Today, statutory rape laws look to alleviate more contemporary concerns. 17 In addition to the state s interest in protecting minors from sexual intercourse and predatory relationships, 18 studies conducted in the late 1990s 19 prompted lawmakers to utilize statutory rape legislation as a tool to assist in the prevention of teenage pregnancy and the resulting increased numbers of young welfare recipients. 20 These studies, indicating that half of all children born to 16 See generally SUSAN BROWNMILLER, AGAINST OUR WILL 17 (1975) (describing rape originating from property law regimes, where it was viewed as the theft of man s interest in his daughter s chastity). 17 See discussion infra Part VI.A.; see also United States v. Shannon 110 F.3d 382 (7th Cir. 1997). Judge Posner asserts that: A further complication, so far as characterizing the purpose behind a particular state s statutory-rape law is concerned, lies in the origins of these laws. Their original purpose was to protect the virginity of female minors in order, in turn, to protect their marriageability, viewed as a girl s or a woman s most precious asset and one gravely impaired by loss of virginity.... Only recently has the focus of governmental concern with teenage sex shifted to the protection of young girls from pregnancy, sexually transmitted diseases, possible psychological harms incident to early commencement of sexual activity, and possible adverse social and economic consequences of teenage pregnancy and births out of wedlock. Id. at 387 (citations omitted). 18 See, e.g., 42 U.S.C (b)(1) (1996) (requiring the United States Attorney General to implement a program establishing the links between statutory rape, teenage pregnancy, and predatory offenders); Martin Tolchin, More States Trying to Curb Teen-Age Pregnancies, N.Y. TIMES, June 17, 1990, at 24 (reporting two-thirds of states making efforts to reduce incidence of teenage pregnancies). 19 See Patricia Donovan, Can Statutory Rape Laws Be Effective in Preventing Adolescent Pregnancy?, 29 FAMILY PLANNING PERSPECTIVES (Jan./Feb. 1996), available at 20 Id.

5 2012] RESOLVING THE POST-BEGAY MAELSTROM 511 underage mothers are fathered by adult men, 21 have sounded the alarm for increased enforcement of statutory rape laws to protect young women from exploitation and abuse 22 and to protect children from poverty and neglect. 23 Difficulties in defining what is colloquially referred to as statutory rape, however, are immediately apparent from a comparison of the various state statutes criminalizing sexual contact with a minor. 24 There is little agreement among the states as to what the age of consent is or should be. 25 Indeed, only twelve states have a single age of consent, generally between sixteen and eighteen years of age. 26 In all other jurisdictions, the age of consent is dependent upon age differences between the victim and perpetrator, the age of the victim, and the age of the defendant. 27 Even the name of the crime differs by jurisdiction, and states often distinguish between those crimes involving minors above or below certain ages, offenders inside or outside a certain range of difference in age from the victim, or involving different levels of sexual activity. 28 These inconsistencies render it nearly impossible to make sweeping assertions as to what constitutes a statutory rape. What is true in every jurisdiction, however, is that adult sexual contact with a minor is prohibited by statute, 29 based on the well-settled rule of law that there exists an age under which an individual lacks the capacity to legally consent to sexual activity. 30 However, a distinction must be made between sexual activity involving minors who are of a socially-acceptable (albeit arbitrary) age to give assent, or consent-in-fact 31 to sexual activity, and sexual activity involving minors below this age. This distinction is evident in the manner in which many states statutory rape 21 Id. 22 Id. 23 Id. 24 Sandra Norman-Eady, Christopher Reinhart & Peter Martino, Statutory Rape Laws By State, OLR RESEARCH REPORT (Apr. 14, 2003), available at 25 Id. A survey of state statutory rape laws shows that age differentials between defendants and complainants range from two to ten years. 26 Id. 27 Id. 28 Id. Statutory language signifying sexual conduct includes sexual intercourse, sexual conduct, sexual penetration, lewd and lascivious conduct, indecent liberties, and illicit connection. See generally, RICHARD A. POSNER & KATHERINE B. SILBAUGH, A GUIDE TO AMERICA S SEX LAWS 44 (1996). 29 See Norman-Eady et al., supra note See United States v. McDonald, 592 F.3d 808, 814 (7th Cir. 2010). There is much debate regarding adolescents aptitude for making mature choices regarding sex. For a critque of statutory rape laws and the proposition that some adolescents can make these choices in an informed manner, see Heidi Kitrosser, Meaningful Consent: Toward a New Generation of Statutory Rape Laws, 4 VA. J. SOC. POL Y & L. 287 (1997). 31 See United States v. Sarmiento-Funes, 374 F.3d 336, 341 (5th Cir. 2004) ( [T]he sex at issue in statutory rape may be consensual as a matter of fact, even if the law disregards or countermands the victim s decision. ).

6 512 CLEVELAND STATE LAW REVIEW [Vol. 60:507 laws are drafted, with penalties for adult/minor sexual intercourse increasing as the child s age decreases. 32 This Note presumes that the victim is of sufficient age to give consent-in-fact to the sexual activity, and therefore the assertions herein are limited to victims in the general range of twelve to seventeen years of age. 33 Accordingly, statutory rape is to be understood as sexual activity that would be legal if not for the age of at least one of the parties. 34 III. THE ARMED CAREER CRIMINAL ACT AND THE ADVENT OF THE VIOLENT FELONY A. Legislative History Enacted by Congress in as a response to research indicating that a small number of recidivist offenders were responsible for a significant percentage of crimes, 36 the Armed Career Criminal Act mandated a minimum prison term of fifteen years for any person convicted of being a felon in possession of a firearm in violation of 18 U.S.C. 922(g) if that person had three previous convictions for robbery or burglary. 37 The House Report quotes Senator Arlen Specter, the sponsor of the legislation, in his assertion that burglary was one of the most damaging crimes to society because it involves invasion of [victims ] homes or workplaces, [and] violation of their privacy Norman-Eady et al., supra note Twelve years of age is the lowest age, of all the states, below which sexual activity is considered first degree rape. For a detailed chart of ages of consent state-by-state, see id. 34 Id CONG. REC. 28,096 (1984). 36 H.R. REP. NO , at 1-2 (1984), reprinted in 1984 U.S.C.C.A.N. 3661, ; see also Armed Career Criminal Act Amendments: Hearing Before the Subcomm. on Criminal Law of the S. Comm. on the Judiciary, 99th Cong. 19 (1986) [hereinafter ACCA Hearing] (statement of Sen. Specter) ( I have long been convinced that if we could put 200,000 career criminals in jail in this country, we could reduce violent crime by 50 percent. ). 37 Both Senator Specter and Representative Wyden introduced bills in their respective Houses of Congress that would have omitted mention of burglaries or robberies from the original version of the ACCA, substituting the phrase crime of violence, which was defined as an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or any felony that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense. See H.R. 4639, 99th Cong. (1986). In response to the proposals by Specter and Wyden, Representatives Hughes and McCollum introduced a bill also eliminating burglaries and robberies as enumerated offenses, but defining the violent felony as any state or federal felony that has as an element the use, attempted use, or threatened use of physical force against the person of another. H.R. 4768, 99th Cong. (1986). 38 Taylor v. United States, 495 U.S. 575, 581 (1990) (emphasis added).

7 2012] RESOLVING THE POST-BEGAY MAELSTROM 513 Due to the narrow scope of the original provision, the 1984 version of the ACCA failed to accomplish its purpose: incarcerating recidivist criminals. 39 In 1986, the Subcommittee on Crime heard testimony on whether to expand the predicate offenses of robbery and burglary to include serious drug offenses and other violent felonies in the provisions of the ACCA. 40 The subcommittee hearing sought to determine what, if any, additional felonies should be included in its definition of a violent felony. As the Court noted in Taylor v. United States, Congress singled out burglary (as opposed to other frequently committed property crimes such as larceny and auto theft) for inclusion as a predicate offense... because of its inherent potential for harm to persons.... There never was any proposal to limit the predicate offense to some special subclass of burglaries that might be especially dangerous, such as those where the offender is armed, or the building is occupied, or the crime occurs at night. 41 In its 1986 amended form, the ACCA added arson, extortion, and crimes involving explosives to the enumerated offenses of robbery and burglary, and defined violent felonies as those crimes punishable for a prison term of more than one year that involve conduct that presents a serious risk of physical injury to another. 42 This amendment to the original language was the beginning of the debate and the myriad circuit splits surrounding how and what to define as a violent felony. B. The Crime of Violence and the United States Sentencing Guidelines The amended ACCA violent felony definition was later adopted by other federal sentence enhancement initiatives. 43 The United States Sentencing Commission, established by the Sentencing Reform Act of 1984, 44 was created specifically to provide adequate deterrence to criminal conduct and protect the public from further crimes of the defendant. 45 To do this, the Sentencing Commission established the United States Sentencing Guidelines ( USSG ) in order to provide certainty and fairness in meeting the purposes of sentencing [and avoid] unwarranted sentencing disparities among defendants with similar records who have 39 See, e.g., ACCA Hearing supra note 36, at 9 (testimony of Deputy Assistant Attorney General James Knapp) (reporting that as of 1986, only fourteen people had been imprisoned under the ACCA). 40 H.R. REP. NO (1986). 41 Taylor, 495 U.S. at Career Criminal Amendments Act of 1986, Pub. L. No , 100 Stat (1986). 43 See U.S. SENTENCING GUIDELINES MANUAL 4B1.2(a) (2007). The federal crime of violence definition has also been used in statutes with civil remedies for victims of violent crimes. See, e.g., Violence Against Women Act of 1994, 42 U.S.C (d)(2) (1994). 44 See Comprehensive Crime Control Act (CCCA) of 1984, Pub. L. No , 98 Stat (1984) (creating the United States Sentencing Commission) U.S.C. 3553(a)(2)(B) (1993); 18 U.S.C. 3553(a)(2)(C) (1993).

8 514 CLEVELAND STATE LAW REVIEW [Vol. 60:507 been found guilty of similar criminal conduct. 46 Under the USSG, career offenders receive enhanced sentences based in part on their criminal history. 47 Following the 1986 amending of the ACCA, the Sentencing Commission likewise amended the USSG to encompass the new violent felony definition as part of a determination of career offender status. 48 Known under the USSG as crimes of violence, the Commission correctly predicted that the new Guidelines definition would be more readily embraced by Congress and federal sentencing judges because it tracked the congressionally-approved language of 18 U.S.C. 924(e). 49 Given these parallels in language, courts have recognized that any interpretation of a crime of violence under the USSG is persuasive when interpreting whether a crime is a violent felony under the ACCA, and vice versa. 50 C. Categorical Approach In approaching the question of whether an offense is a violent felony under the ACCA, courts have traditionally used one of three approaches: the categorical approach, 51 the modified categorical approach, 52 and the fact-based approach, 53 each 46 United States Sentencing Guidelines (USSG), 28 U.S.C. 991(b)(1)(B) (1993). 47 U.S. SENTENCING GUIDELINES MANUAL 4B1.1(a) (2007) ( A defendant is a career offender if (1) the defendant was at least eighteen years old at the time the defendant committed the instant offense of conviction; (2) the instant offense of conviction is a felony that is either a crime of violence or a controlled substance offense; and (3) the defendant has at least two prior felony convictions of either a crime of violence or a controlled substance offense. ). 48 The Guidelines originally took their definition of the crime of violence from an amendment to the Comprehensive Crime Control Act. See 18 U.S.C. 16 (1994) (defining crime of violence as either an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another or any... offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property... may be used in the course of committing the offense ). 49 See U.S. SENTENCING COMM N, CAREER OFFENDER WORK GROUP REPORT 24 (1987) ( The [work] group s general feeling is that because the penalties imposed by this guideline are so severe, linking the definitions of predicate crimes to those already approved, defined and joined together by Congress for the heavy sanction of 924(e) would facilitate both the acceptance of the guideline and its proper application. ). 50 See United States v. Winter, 22 F.3d 15, 18 n.3 (1st Cir. 1994). 51 Under this approach, the court does not delve into the specific conduct of the defendant, but looks only to the minimum conduct necessary for a conviction under the relevant statute. See, e.g., United States v. Bauer, 990 F.2d 373, 375 (8th Cir. 1993) (finding that statutory rape is a crime of violence under the categorical approach). 52 Under the modified categorical approach, the sentencing court will examine the facts relating to the underlying conviction contained in the charging papers, the indictment, or information to determine whether an offense involves conduct that presents a serious potential risk of physical injury to another. See, e.g., United States v. Shannon, 110 F.3d 382, 389 (7th Cir. 1997) (finding that sexual intercourse with a thirteen-year-old was a crime of violence using the modified categorical approach). 53 Under the fact-based approach, courts examine any and all facts surrounding prior convictions rather than limiting their inquiries to any specific documents. A court may review the record of the prior proceeding or hold evidentiary hearings to determine whether the

9 2012] RESOLVING THE POST-BEGAY MAELSTROM 515 of which has strengths, weaknesses, and varying degrees of support. 54 Use of the categorical approach which requires that the sentencing court look only to the fact of conviction in determining whether an offense is a predicate violent felony for enhanced sentencing has been mandated by the Court in the seminal case on violent felony determinations: Taylor v. United States. 55 Taylor does, however, allow for the use of a modified categorical approach in the narrow range of cases where the statutory definition of the offense is ambiguous or so broad in scope that it encompasses both violent felonies and other crimes that would not qualify as a predicate felony under the statute. 56 In such cases, the court may consider extrinsic evidence, but such evidence is limited to the terms of the charging document, the terms of a plea agreement... or to some comparable judicial record of this information 57 in order to determine that the crime is a violent felony as defined by the ACCA. The Taylor exception to strict use of the categorical approach is particularly relevant to statutory rape statutes. Often, charges brought under such statutes hinge on the age of the victim or the perpetrator information not readily gleaned from the statutory definition of the offense or simultaneously criminalize actual sexual contact with a minor (i.e. intercourse) and victimless sexual conduct such as possession of child pornography. 58 This broad scope sometimes requires that courts utilize a modified categorical approach in determining whether statutory rape is a predicate violent felony for enhanced sentencing, 59 without sacrificing the equity of the categorical approach. IV. RECONCILING BEGAY V. UNITED STATES AND CHAMBERS V. UNITED STATES A. Deconstructing Begay v. United States After a night of heavy drinking in September 2004, Larry Begay accosted his aunt and sister with a rifle, demanded money, and threatened to shoot if they failed to comply. When informed that they had no money, Mr. Begay repeatedly pulled the previous conviction was a crime of violence that would constitute a predicate felony for enhanced sentencing. See, e.g., United States v. Flores, 875 F.2d 1110, 1114 (5th Cir. 1989) (Allowing the use of an interview-based reliance on a pre-sentence report to determine whether the defendant s burglary convictions were for burglaries of a dwelling ). 54 See Susan Fleischmann, Comment, Toward a Fact-Based Analysis of Statutory Rape Under the United States Sentencing Guidelines, 1998 U. CHI. LEGAL F. 425, 429 (1998) (positing that the fact-based approach is the sole way of allowing the courts to consider the facts of a case in totality prior to making a determination that a predicate offense is a crime of violence). 55 Taylor v. United States, 495 U.S. 575 (1990). 56 Id at 602. ( This categorical approach, however, may permit the sentencing court to go beyond the mere fact of conviction in a narrow range of cases where a jury was actually required to find all the elements of generic burglary. ) 57 United States v. France, 394 F. App x 246, 248 (6th Cir. 2010) (quoting United States v. Bartee, 529 F.3d 357, 358 (6th Cir. 2008)). 58 United States v. Daye, 571 F.3d 225, 235 (2d Cir. 2009). 59 See, e.g., United States v. Shannon, 110 F.3d 382, 387 (7th Cir. 1997).

10 516 CLEVELAND STATE LAW REVIEW [Vol. 60:507 trigger of the unloaded gun. 60 After his arrest, Begay admitted being an eight-time felon, having been convicted twelve times of driving under the influence ( DUI ), 61 a crime that, under New Mexico law, becomes a felony the fourth (and each subsequent) time an individual commits it. 62 Following his guilty plea for unlawful possession of a firearm, the sentencing judge determined that Begay s prior DUI convictions were for crimes punishable by imprisonment for a term exceeding one year, and involved conduct that present[ed] a serious potential risk of physical injury to another. 63 Accordingly, Begay was sentenced under the ACCA s enhanced sentencing provisions requiring a mandatory minimum prison term of fifteen years. 64 On appeal, Begay argued that driving under the influence was not a crime of violence under the ACCA. 65 The Tenth Circuit Court of Appeals disagreed. 66 Upon granting certiorari, the Begay Court, in an entirely new interpretation of the otherwise clause of the ACCA, 67 determined that to qualify as a violent felony, the offense must typically involve purposeful, violent, and aggressive conduct, 68 as do the enumerated offenses that precede the otherwise clause. 69 Additionally, the Court held that to qualify as a predicate violent felony, an offense must be roughly similar, in kind as well as in degree of risk posed, to the [statutory] examples of burglary, arson, extortion, and offenses involving the use of explosives. 70 Using this standard, the Court found that DUI, a strict liability crime requiring no culpable mens rea, could not constitute a predicate felony offense under the ACCA because it did not typically involve purposeful conduct of the kind associated with robbery, burglary, or drug offenses. 71 B. Where Does Chambers v. United States Fit? Less than a year post-begay, the Supreme Court heard oral arguments in Chambers v. United States 72 on the question of whether failure to report, as distinct from felony escape, is a violent felony for purposes of the ACCA s enhanced 60 Begay v. United States, 553 U.S. 137, 140 (2008). 61 Id. 62 Id. 63 Id. at Id. at Id. at Id U.S.C. 924(e)(2)(B)(ii) (2006) (known as the otherwise or residual clause of the ACCA). 68 Begay, 553 U.S. at 158 (Alito, J., dissenting). 69 Id. at 144; see also 18 U.S.C. 924(e)(2)(B)(ii) (2006). 70 Begay, 553 U.S. at 143 (emphasis added). 71 Id. at Chambers v. United States, 555 U.S. 122 (2009).

11 2012] RESOLVING THE POST-BEGAY MAELSTROM 517 sentencing provisions. 73 Having pled guilty to being a felon in possession of a firearm, Deondery Chambers was sentenced to roughly fifteen and a half years in prison under the ACCA. 74 On appeal, Chambers argued that his prior conviction for escape was not a predicate violent felony. 75 The Seventh Circuit affirmed the sentence, although Judge Posner noted that, for purposes of enhanced sentencing under the ACCA, a clear distinction should be made between a violent escape and a peaceful failure to report. 76 The Supreme Court made just such a distinction in Chambers v. United States, holding that a failure to report is not a violent felony under the ACCA. 77 Seven months after Begay, the Court concluded that failure to report did not reach the level required for enhanced sentencing because it does not involve conduct that is purposeful, violent, and aggressive, 78 a finding in line with its narrow construction of the otherwise clause in Begay. 79 However, the inquiry did not end there. Instead, the Court then focused its attention on whether a failure to report involves conduct that presents a serious potential risk of physical injury to another. 80 Concluding that failure to report did not involve such risk and thus was not within the purview of the ACCA, the Court appeared to rely on the pre-begay standard of evaluating the otherwise clause in terms of risk of injury rather than similarity in kind with the enumerated offenses. 81 Additionally, the Court seemed to relegate the Begay requirements to a passing observation, noting that [c]onceptually speaking, [failure to report] amounts to a form of inaction, a far cry from... purposeful, violent, and aggressive conduct. 82 This apparent departure from Begay further confused the inquiry regarding what offenses qualify as violent felonies and what standard should be used to make such a determination. C. Resolving the Uncertainty In his Begay dissent, Justice Alito (joined by Justices Souter and Thomas) took to task the purposeful, violent, and aggressive standards established by the majority as wholly inconsistent with the language of the statute. 83 Citing the Webster s Dictionary definition of otherwise in a different manner 84 Alito 73 Id. at Id. at United States v. Chambers, 473 F.3d 724, 725 (7th Cir. 2007). 76 Id. at Chambers, 555 U.S. at 130 (2009). 78 Id. at Begay v. United States, 553 U.S. 137, 144 (2008). 80 Chambers, 555 U.S. at 122 (2009). 81 Violent felonies must be roughly similar, in kind as well as in degree of risk posed, to the [statutory] examples of burglary, arson, extortion, and offenses involving use of explosives. Begay, 553 U.S. at 143 (emphasis added). 82 Chambers, 555 U.S. at 128 (2009). 83 Begay, 553 U.S. at 155 (Alito, J., dissenting). 84 Id. at 159.

12 518 CLEVELAND STATE LAW REVIEW [Vol. 60:507 asserted that any similarities between a crime that presents a serious potential risk of physical injury to another and the named statutory offenses of burglary, arson, and extortion need not be in kind, but must merely, in a different manner, pose a serious risk of physical injury. 85 Any other requirements (i.e. that the crime be purposeful, violent, or aggressive) would amount to adding new language to the statute, a practice that is to be resisted by the Court. 86 In yet another interpretation of the otherwise clause, Justice Scalia in his Begay concurrence suggested a test that would center on the question of risk. 87 Dismissing the majority decision as a regrettable continuation of a piecemeal, suspenseful, Scrabble-like approach to the interpretation of this statute, 88 Justice Scalia came to the same conclusion regarding the Begay test as did Alito, Souter and Thomas: that the purposeful violent and aggressive test bears no resemblance to the plain language of the statute or, by extension, the intent of Congress. 89 Justice Alito, joined by Justice Thomas, reiterated the concerns he voiced in his Begay concurrence in his concurrence in Chambers. 90 While commending the efforts of his colleagues to develop a workable test of the otherwise clause while retaining the categorical approach adopted in Taylor, 91 Alito nonetheless stressed the apparent impossibility of consistent application of the otherwise clause. 92 Citing the circuit splits that have resulted from an attempt to balance the otherwise clause with the categorical approach 93 and noting that these splits could occupy this Court 85 Id. 86 Id. 87 Id. at 150 (Scalia, J., concurring) ( There is simply no basis (other than the necessity of resolving the present case) for holding that the enumerated and unenumerated crimes must be similar in respects other than the degree of risk that they pose. ) (emphasis in original). 88 Id. 89 Id. at Chambers v. United States, 555 U.S. 122, 131 (2009) (Alito, J., concurring). 91 Id. at Id. at Id. at 133 n.2. There has been little consistency in the application of the otherwise clause using the categorical approach. Justice Alito notes the myriad circuit splits that have resulted from attempts to reconcile the two: [T]he lower courts have split over whether it is a violent felony under ACCA s residual clause to commit rape, compare United States v. Sawyers, 409 F.3d 732 (6th Cir. 2005) (statutory rape not categorically violent), with United States v. Williams, 120 F.3d 575 (5th Cir. 1997) (inducement of minor to commit sodomy violent), and United States v. Thomas, 231 F. App x. 765 (9th Cir. 2007) (all rape violent); retaliate against a government officer, compare United States v. Montgomery, 402 F.3d 482 (5th Cir. 2005) (not violent), with Sawyers, supra (violent); attempt or conspire to commit burglary, compare United States v. Fell, 511 F.3d 1035 (10th Cir. 2007) (even after James v. United States, 550 U.S. 192 (2007), and even where statute requires an overt act, conspiracy to commit burglary not violent), with United States v. Moore, 108 F.3d 878 (8th Cir. 1997) (attempted burglary violent if statute requires proof of overt act); carry a concealed weapon, compare United States v. Whitfield, 907 F.2d 798 (8th Cir.

13 2012] RESOLVING THE POST-BEGAY MAELSTROM 519 for years, 94 Justice Alito concluded that each new application seems to lead the Court further away from the plain language of the statute, and suggests that Congress revisit the ACCA and formulate a specific list of expressly defined crimes 95 that would qualify as predicate violent offenses under the ACCA. Notwithstanding these critiques, it is possible to reconcile Chambers and Begay. While Chambers appears to rely on the pre-begay standard of serious risk of physical harm as the test of a violent felony seemingly a departure from the purposeful, violent, and aggressive test outlined in Begay Chambers in fact merely clarifies that the test of a violent felony is twofold. In other words, a predicate violent felony is one that is purposeful, violent, and aggressive (or similar in kind to the enumerated offenses) and one that involves conduct that poses a serious risk of physical harm to another (or similar in degree of risk posed to the enumerated offenses). However, as evidenced by the concurring and dissenting opinions in Begay and Chambers, the subsequent case law and resulting circuit splits, clarity on what crimes fall within the Court s definition of a violent felony remains elusive. V. STATUTORY RAPE: SIMILAR IN KIND TO THE ENUMERATED OFFENSES The central proposition asserted by the Begay Court is that there exists a unifying thread amongst the enumerated offenses of the ACCA, and that this common factor is the purposeful, violent, and aggressive conduct involved. However, there are further commonalities. Burglary, as Senator Specter alluded, involves an intrusion upon the sanctity of our private space our homes. 96 Arson and the use of explosives carry the potential for loss of life and long-term financial devastation. Extortion may begin as a rather innocuous crime and quickly escalate to a violent endeavor. While on first blush statutory rape bears little resemblance to these crimes, it indeed shares these crucial linking traits. Sexual intercourse between an adult and a minor, like burglary and robbery, carries with it the invasion of the victim s most personal space and human dignity. 97 Sexual conduct even between consenting adults may result in a deadly sexually transmitted disease or pregnancy ) (not violent), with United States v. Hall, 77 F.3d 398 (11th Cir. 1996) (violent); and possess a sawed-off shotgun as a felon, compare United States v. Amos, 501 F.3d 524 (6th Cir. 2007) (not violent), with United States v. Bishop, 453 F.3d 30 (1st Cir. 2006) (violent). Compare also United States v. Sanchez- Garcia, 501 F.3d 1208 (10th Cir. 2007) (unauthorized use of a motor vehicle not a violent felony under 18 U.S.C. 16(b), which closely resembles ACCA s residual clause), with United States v. Reliford, 471 F.3d 913 (8th Cir. 2006) (automobile tampering violent under ACCA s residual clause), and United States v. Galvan-Rodriguez, 169 F.3d 217 (5th Cir. 1999) (per curiam) (unauthorized use of a motor vehicle a violent felony under 16(b)). Id. 94 Id. at Id. at Taylor v. United States, 495 U.S. 575, 581 (1990). 97 For the parallels between robbery and its similarities to sexual activity, see Susan Estrich, Rape, 95 YALE L.J. 1087, 1152 (1986). 98 See discussion infra Part VI.

14 520 CLEVELAND STATE LAW REVIEW [Vol. 60:507 Further, given the age, maturity, and possible size and strength disparities between victim and perpetrator, a genuine concern exists that any sexual conduct between adults and minors, regardless of the assent of the victim, can quickly escalate to an aggressive or forceful encounter. A. Addressing the Purposefully Requirement As Justices Scalia and Alito have noted, requiring that predicate violent felonies be purposeful, violent, and aggressive runs afoul of the statutory language. 99 However, even accepting this portion of the test, statutory rape should qualify as a crime of violence for purposes of enhanced sentencing under the ACCA because it involves not only aggressive conduct, but also a degree of purpose on the part of the perpetrator. Since Begay, 100 courts in several jurisdictions have shown reluctance to find that strict liability crimes such as statutory rape possess the requisite intent to qualify as a crime of violence. 101 The reason for this reluctance is clear: Begay itself concerned the strict liability crime of driving under the influence and specifically rejected the notion that a strict liability crime lacking any purposeful mens rea is a violent felony. 102 It is the nature of the crimes themselves, however, that renders the two strict liability offenses distinct from one other, and these differences are crucial to our understanding of the ramifications of the Begay purposefully requirement on statutory rape versus driving under the influence. Where statutory rape laws generally require, at a minimum, intentional sexual conduct with an individual legally unable to consent, 103 driving under the influence is a crime of recklessness or negligence. 104 Of course, one might argue that the act of having sex is intentional, as is the act of driving, and that mistake as to the age of a sexual partner is similar to the negligence involved in drunk driving. 105 Where these two strict liability crimes diverge is that drunk driving may or may not result in an imposition on the person or property of another and is often victimless in that, frequently, no one is physically or financially injured by the negligent or reckless intoxicated driver. 106 Adult-minor sexual activity should be distinguished from the strict liability crime of driving under the influence because, unlike DUI, sexual intercourse always involves the interplay 99 See discussion infra Part VI; Begay v. United States, 553 U.S. 137, 159 (2008) (Alito, J., dissenting). 100 Begay, 553 U.S. at See, e.g., United States v. McDonald, 592 F.3d 808, 814 (7th Cir. 2010); United States v. Thornton, 554 F.3d 443, 444 (4th Cir. 2009); United States v. Christensen, 559 F.3d 1092, 1093 (9th Cir. 2009). 102 Begay, 553 U.S. at Norman-Eady et al., supra note United States v. Rooks, 556 F.3d 1145, 1151 (10th Cir. 2009). 105 For a discussion of mistake-of-age defenses, see generally People v. Hernandez, 393 P.2d 673 (Cal. 1964). 106 See, e.g., Morbidity & Mortality Weekly Report, Vital Signs: Alcohol Impaired Driving Among Adults - United States, 2010, CTR. DISEASE CONTROL (Oct. 4, 2011), ( An average drunk driver has driven drunk 80 times before first arrest. )

15 2012] RESOLVING THE POST-BEGAY MAELSTROM 521 between one s personal autonomy and that of another. This is the case even where the act is between consenting adults, but the psychological, physiological, and emotional impact is far greater in adult-minor sexual relations. 107 Further, statutory rape is proscribed by the statutes of all fifty states because it is recognized that children lack the emotional and/or physical maturity to consent to sexual activity and all that flows from it. Conversely, the adult perpetrator is expected to have the ability to appreciate the ramifications, risks, and rewards of sexual contact as well as to conduct due diligence as to the age of his or her partner. For these reasons, if an adult intentionally engages in a sex act with someone unable to give legally-cognizable consent regardless of any mistake as to the age of the victim it is the adult who bears the sole criminal and civil liability for the encounter. Completion of a sex act with an individual who is, in fact, below the age of consent therefore can be legitimately construed as affirmative conduct by the defendant. 108 As the Second Circuit found in Daye, a post-begay case, completion of such an act is sufficient to satisfy Begay s requirement that the crime be one of purpose, even absent any culpable mens rea required by the statute itself. 109 B. Rape Statutes as a Benchmark: Defining Force and Violence Spurred by the feminist theory era of the 1970 s, 110 the societal view of rape has evolved from the crime of passion to the crime of violence and aggression. 111 The characterization of rape as a violent crime is evidenced by the move of state legislatures toward shifting the statutory definitions of rape closer to those of assault and battery. 112 In fact, many states have changed their very terminology, classifying 107 See discussion infra Part VI. 108 United States v. Daye, 571 F.3d 225, 234 (2d Cir. 2009). 109 Id. 110 Susan Brownmiller pioneered the theory of rape as a crime of violence, describing it as a societal problem resulting from a distorted masculine philosophy of aggression, and not a crime of lust but of violence and power. BROWNMILLER, supra note 16, at 400; see also CATHERINE MACKINNON, FEMINISM UNMODIFIED 85 (1987) ( Rape is a crime of violence, not sexuality ); Estrich, supra note 97, at ( rape... celebrates male aggressiveness ). 111 See supra note 109 and accompanying text. The trend toward defining rape as a violent crime is outlined in the Violence Against Women Act of 1994, Pub. L. No , 108 Stat See MAJORITY STAFF SENATE JUDICIARY COMM., 103d CONG., THE RESPONSE TO RAPE: DETOURS ON THE ROAD TO EQUAL JUSTICE (1993) (quoting Senator Joe Biden: [T]here are... crimes namely rape and family violence that disproportionately burden women. ). 112 Using assault and battery statutes as a guide, almost all state rape statutes have now been amended to: 1) establish and emphasize forces as an element of the crime; and 2) eliminate the requirement that the victim have resisted the assault. See, e.g., MICH. COMP. LAWS ANN a, b (West 1991) (categorizing sexual intercourse as a firstdegree felony if achieved by the use or threat of physical force).

16 522 CLEVELAND STATE LAW REVIEW [Vol. 60:507 rape as sexual assault 113 and emphasizing the defendant s use of force as an element of the offense. 114 Black s Law Dictionary defines force as [p]ower, violence, or pressure directed against a person or thing. 115 On the other hand, power is defined as [d]ominance, control, or influence. 116 Considering force and power as legal terms of art, it becomes clear that a sex offense can be forcible absent any physical force. This is so because the law requires only compulsion (or pressure ) to find force, and that compulsion can be accomplished through an exertion of power wholly devoid of any physical violence. 117 The disparity in power, influence, and physical stature that exists in many adult-minor sexual relationships can easily foster an atmosphere in which forceful, violent, or aggressive behavior will be utilized to ensure compliance. This is so because a child has little recourse in deterring a stronger, more mature adult from using such force. 118 These disparities are directly in line with the legally-accepted definition of force as the exertion of undue power. Despite the increasing societal conception of rapes as crimes of violence, a victim s consent to sexual conduct continues to be the primary factor in determining whether the conduct was rape. In cases involving date rape, or acquaintance rape, where the type and level of force used may be unclear, 119 modern courts have recognized that it is the lack of consent to sexual activity that renders an act violent. 120 In such cases, where the only force deemed necessary to meet the statute s force requirement is that necessary to accomplish the sexual act, the crucial question is whether or not there was consent. 121 Nowhere is this reliance on the presence or absence of consent more relevant than when determining whether statutory rape should qualify as a predicate violent felony for enhanced sentencing. 113 See, e.g., 720 ILL. COMP. STAT. ANN. 5/12-12 (West 1997); N.J. STAT. ANN. 2C:14-2 (West 1995) (defining the crime of sexual assault ). 114 See supra note 113 and accompanying text.; see also 720 ILL. COMP. STAT. ANN. 5/12-13 (West 1993) ( The accused commits criminal sexual assault if he or she: (1) commits an act of sexual penetration by the use of force or threat of force.... ). 115 BLACK S LAW DICTIONARY 673 (8th ed. 1999). 116 Id. at United States v. Chacon, 533 F.3d 250, 257 (4th Cir. 2008); see also United States v. Romero-Hernandez, 505 F.3d 1082, 1088 (10th Cir. 2007). 118 See United States v. Daye, 571 F.3d 225, 232 (2nd Cir. 2009). 119 See, e.g., Commonwealth v. Berkowitz, 609 A.2d 1338, 1340 (Pa. Super. Ct. 1992) ( [He] put me down on the bed. It was kind of like he didn t throw me on the bed. It s hard to explain. It was kind of like a push but no.... It wasn t slow like a romantic kind of thing, but it wasn t a fast shove either. It was kind of in the middle. ). 120 See, e.g., State ex rel. M.T.S., 609 A.2d 1266 (N.J. 1992). The court found that engaging in intercourse with the sleeping victim constituted sexual assault, even though the defendant stopped when the victim awoke and requested he do so. 121 Id. at